9911796707
TMI Blog1981 (8) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... length we passed the following Order on April 22, 1981:- We have heard counsel for the parties at great length. In our opinion, the appeal before the High Court was maintainable and the High Court should have entertained and decided it on merits. We, therefore, allow this appeal, set aside the judgment dated January 15, 1981 of the Division Bench of the Bombay High Court and remand the case to the same and decide it on merits. The High Court will dispose of the appeal as quickly as possible. The interim order passed by this Court on February 16, 1981 will continue until the High Court disposes of the appeal. Liberty to parties to approach the High Court for fixing an early date of hearing. In the circumstances, there will be no order as to costs. Reasoned judgment will follow. We now set out to give the reasons for the formal Order allowing the appeal which was passed by us on the aforesaid date. As we are not at all concerned with the facts of the case it is not necessary to detail the same in this judgment. Suffice it to say that the plaintiff-appellant had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Peace for Calcutta v. The Oriental Gas Company where Sir Richard Couch, C.J. had laid down a particular test on a rather strict and literal interpretation of the Letters Patent. Later decisions of the Calcutta High Court have followed this decision of Sir Richard Couch, C.J. with some modifications and clarifications. The Madras High Court has taken a very liberal view in its decision in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar. The Bombay High Court seems to have consistently taken the view that no interlocutory order can ever be said to be a judgment within the meaning of the Letters Patent so as to be appealable from the order of a Single Judge exercising original civil jurisdiction (hereinafter referred to as Trial Judge ) to a larger Bench. The Rangoon High Court speaking through Sir Page, C.J. in In Re Dayabhai Jiwandas Ors v. A.M.M. Murugappa Chettiur has placed a very narrow interpretation on the term judgment and has almost equated it with a decree passed by a civil court. This Court also has incidentally gone into the interpretation of the word judgment and has made certain observations but seems to have decided the cases before it on the peculiar facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Shankarlal Aggarwal Ors. v. Shankarlal Poddar Ors. the conflict in the various decisions of various High Courts was again noticed and this Court observed as follows: There has been very wide divergence of opinion between the several High Court in India as to the content of the expression judgment occurring in Cl. 15 of the Letters Patent................We consider that occasion has not arisen before us either since in view of the construction which we have adopted of s. 202 of the Indian Companies Act the scope of the expression judgment in the Letters Patent does not call for examination or final decision . (Emphasis ours) There are other decisions of this Court also which have touched the fringes of the question but did not choose to give a final verdict on the vexed question and preferred to decide the cases on their own facts. We shall briefly refer to these decisions at a later stage of this judgment. With due deference to the desire of this Court to settle the controversy in question once for all, the very able, detailed and lengthy arguments advanced by counsel for the parties on various shades, features and aspects of the interpretation of the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using to appoint a receiver or to grant injunction has the trappings and attributes of finality as it affects valuable rights of the plaintiff in an ancillary proceeding though the suit is kept alive and would, therefore, amount to a judgment within the meaning of the Letters Patent. The learned counsel for the respondents while countering the arguments of Mr. Sorabjee submitted the following propositions: (1) S. 104 read with order 43 Rule 1 could not apply to the original trial by the Trial Judge which is governed by the Letters Patent alone. (2) It was further argued that the forum for an appeal contemplated by s. 104 is the same as that for appeals under sections 96 to 100 of the Code of 1908, that is to say, appeals from the courts in the mofussil (district courts) to the High Court and it has no application to internal appeals within the High Court. In other words, the forum under which an appeal lies from one Judge of the High Court to a larger Bench is not a forum contemplated by s. 104 at all but is created by the Letters Patent. (3) If s. 104 of the Code of 1908 is held to be applicable to proceedings before the Trial Judge of the High Court certain strange an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mofussils or internal appeals to the High Courts under the Letters Patent. Section 591 clearly provided that except the orders mentioned in s. 588 no further appeal could lie from any order passed by any court in exercise of its original or appellate jurisdiction. Section 591 may be extracted thus:- 591. No other appeal from orders; but error therein may be set forth in memorandum of appeal against decree. Except as provided in this chapter, no appeal shall lie from any order passed by any Court in the exercise of its original or appellate jurisdiction but if any decree be appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal . In other words, the position was that while the statute provided only for appeals against orders, all other appeals could only be against a decree passed by the court concerned. The statute there fore, did not contemplate any other appeal except those mentioned in ss. 588 and 591. The Code of 1877 was later on replaced by the Code of 1882 but the provisions remained the same. In view of the rather vague and uncertain nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... triction to the effect that appeal against the orders of the Trial Judge mentioned in s. 588 would not lie to a larger Bench of the High Court. In other words, the Privy Council intended to lay down clearly that s. 588 did not affect nor was it inconsistent with the provisions of the Letters Patent and hence those orders of the Trial Judge which fell beyond s. 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of cl. 15 of the Letters Patent. Therefore, the views taken by the Calcutta, Bombay and Madras High Courts, referred to above, were undoubtedly correct. At any rate, since a fresh controversy had arisen, the legislature stepped in to settle the controversy by enacting the new s. 104 in the Code of 1908. Section 104 made it clear that appeals against orders mentioned in order 43 Rule 1 were not in any way inconsistent with the Letters Patent and merely provided an additional remedy by allowing appeals against miscellaneous Orders passed by the Trial Judge to a larger Bench. In other words, the legislature gave full statutory effect to the views of the Calcutta, Bombay and Madras High Courts. Even after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts all other Civil courts would normally be governed by the provisions of the Code of Civil Procedure in the matter of procedure. Section 4(1) of the Code of 1908 which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in s. 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by s. 4, the provisions of s. 104 do not seek to limit or affect the provisions of the Letters Patent. This now takes us to s. 104 of the Code of 1908, the relevant portion of which may be extracted thus:- 104.(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (a) to (f) annulled; (ff) an order under section 35-A (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fact does not appear to have been noticed by any of the decisions rendered by various High Courts. We might further point out that s. 117 of the Code of 1908 expressly applies the provisions of the Code to High Courts also. Section 117 may be extracted thus: 117. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts . We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case s. 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by cl. 15 of the Letters Patent. What s. 104 read with order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench. Indeed, if this is the position then the contention of the respondent that s. 104 will not apply to internal appeals in the High Courts cannot be countenanced. In fact, the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if order 43 Rule 1 applies to a Trial J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is such a law and what it expressly provides, namely an appeal to the High Court s appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by orders and Rules under the Code of Civil Procedure, 1908 are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal . Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that order 43 Rule 1 applies to the original proceedings before the Trial Judge. In Union of India v. Mohindra Supply Co., this Court made the following observations:- The intention of the legislature in enacting subs. (1) of s. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by s. 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court without at all disturbing, interfering with or overriding the Letters Patent jurisdiction. There are a number of other Acts also which confer additional powers of appeal to a larger Bench within the High Court against the order of a Trial Judge. Take, for instance, a case under the Arbitration Act. Suppose in a suit the matter is referred to arbitration and after the award is filed by the Arbitrator certain objections are taken, under s. 39 of the Arbitration Act an appeal would lie to a Larger Bench from the order of a Single Judge disposing of the objections taken by the parties against the award. Section 39 runs thus: 39. Appealable orders.-(1) An Appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decree of the Court passing the orders; An Order- (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) Modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n forma pauperis is not appealable under s. 588, which provides that no appeal shall lie from orders not specified in that section. It has already been decided in Achaya v. Ratnavelu (ILR 9 Mad. 253) that s. 15 of the Letters Patent is controlled by a similar section in the Civil Procedure Code, which provided that an order shall be final, and that enactments to such effect are not beyond the legislative powers of the Governor-General in Council . Thus, even in the earlier times the High Court had veered round to the view that s. 588 would be applicable to the High Courts also even in respect of internal appeals in, the High Court. Similarly, in Ruldu Singh v. Sanwal Singh, Shadi Lal, C.J. Speaking for the court observed thus;- Now, section 588 of the old Code, which has now been replaced by section 104 and Order XLIII, rule of the new Code, enacted that an appeal lay from the orders specified in that section and from no other orders ; and it was consequently decided by a Full Bench of that Court in Muhammad Naim-ul-Lah Khan v. Ihsan Ullah Khan (1892) ILR 14 All. 226 that clause 10 of the Letters Patent was controlled in its operation by section 588, and that no appeal lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable or permissible. In the first place, once s. 104 applies and there is nothing in the Letters Patent to restrict the application of s. 104 to the effect that even if one appeal lies to the Single Judge, no further appeal will lie to the Division Bench. Secondly, a perusal of clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that is in cases of appeals decided by a Single Judge under s. 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise. The relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinction drawn by the Allahabad High Court regarding the application of s. 104 is a distinction without any difference. Sir John Edge, C.J., in Muhammad Naim-ul-lah Khan s case (supra) dealing with this aspect of the matter observed thus:- It appears to me that the Code of Civil Procedure (Act No. XIV of 1882), as did Act No. X of 1877, contemplates a High Court in two aspects. It contemplates a High Court doing the ordinary work of a Court of original and appellate jurisdiction; having the necessary powers of review and revision in certain cases and certain other powers such as are generally found vested in the Courts of the importance of High Courts...whatever those powers may be, it is quite clear to my mind that the power conferred on a High Court under Chapter XLV of the Code of Civil Procedure are special powers and entirely distinct from the ordinary powers required by the High Court in the carrying on of its ordinary judicial business. and Mahmood, J. Observed thus: To hold then that where this statute of ours, namely, our present Code of Civil Procedure, declares a decree or order non-appealable, such decree or order can be made the subject of consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) was clearly wrong in holding that an appeal under the Letters Patent would lie even against an appellate order of the Trial Judge passed under O.43, R. 1 even though it was prohibited by s. 104 (2) of the Code. Similarly, in Chappan s case (supra) the Court on an interpretation of s. 588 (which now corresponds to the present Order 43 Rule 1 clearly held that an appeal would lie to the High Court against the orders contemplated in various clauses of s. 588 of the Code of 1877. The Court held thus:- The result of this judgment (so far as it applies to the question before us) appears to me to come to this, that if the order made by a single Judge only amounts to an order such as is intended by chapter XLII of the Code, it is not appealable unless it is within section 588. The Madras case heavily relied on the decision of the Privy Council in Hurrish Chunder Chowdry s case (supra). In Lea Badin v. Upendra Mohan Roy Chaudhury Ors. while criticising the judgment of Sir Richard Couch, C.J. in The Justice of the Peace for Calcutta (supra) the Court as an alternative argument clearly held that order 43 Rule 1 would apply pro tanto to the Trial Judge and on this ground als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, a affords to my mind prima facie grounds for supposing that case is of a class which this Court considers appealable under its Letters Patent.. Looking at the nature of the order appealed from, I think I should hold that it is appealable as a judgement under the Letters Patent. and Mookerjee, J. Observed thus:- The term Rule which finds a place in s. 117 is defined in clause 18 of s. 2 of the Code to mean a rule contained it the First Schedule or made under s. 122 or s. 125. our attention has not been drawn to any such rule which makes O. 43, R, 1, clause (c) inapplicable. On the other hand, O. 49, R. 3 which excludes the operation of other rules, lends support to the contention of the appellant that O. 43, R. 1 clause (c) is applicable to the present appeal. S. 104 of the Code of 1908 is materially different from S. 588 of the Code of 1882. It provides that lie from the orders mentioned in the first clause of that section and, save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders. The effect of s. 104 is thus, not to take away a right of appeal given by clause 15 of the Letters Patent, but to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first of these points has been authoritatively decided against the view of the present respondents by the Judicial Committee of the Privy Council in the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debi (10 I. A. 4). I need not travel into the facts of that case, but there their Lordships said at page 494 of the report in the Indian Law Reports: It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this where the appeal is from one of the Judges of the Court to the Full Court. It is clear from the report that the point was elaborately argued, and the clear expression of their Lordships opinion must be read in connection with that argument. and Prinsep, J. who agreed with the Chief Justice, made the following identical observations:- We have it, therefore, that if beyond clause 15 of the Letters Patent, 1865, section 588 of the Code of Civil Procedure gives the right of appeal against any order of the description specified therein, there is no Court of Appeal constituted to hear it, if such order not being a judgment had been made by the Judge on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicability of order 43 Rule 1 to an appeal against an order of a Trial Judge to the Division Bench was directly in point and fully considered by a Division Bench of the Calcutta High Court and a Full Bench of the Rangoon High Court. In Kumar Gangadhar Bagla v. Kanti Chunder Mukerjee Anr. while dwelling on this aspect of the matter it was observed as follows: Mr. Bose did not seek to argue, that the formal order of the 7th of June, 1935, was one of the appealable orders provided for in the Code of Civil Procedure. On the contrary, he went so far as to averwith considerable vehemence - that neither sec. 104 nor order XLIII, r. l of the Civil Procedure Code has any application to the High Court. I would point out that it is clear from sec. 117 of Code of Civil Procedure and still clearer from Or. XLIX, r. 3, C.P.C., that both sec. 104 and Or. XLIII, r. 1, do apply to the High Court . (Emphasis ours) It is manifest from the observations made above that in view of the clear and explicit provisions of s. 117 and order 49 Rule 3 which while exempting other provisions from the jurisdiction of the High Court did not exempt the various clauses of order 43 Rule 1. An identical vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Radhey Shyam v. Shyam Behari Singh (1) clearly held that an application under order 21 rule 90 to set aside the auction-sale is a judgment as the proceeding raises a controversy between the parties regarding their valuable rights. In this connection, this Court observed thus :- In our view an order in a proceeding under o. XXI, r. 90 is a judgment inasmuch as a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale . On a parity of reasoning, an order refusing to appoint a receiver or grant an injunction and similar orders mentioned in various clauses of order 43, Rule 1 fall within the tests laid down by this Court in the aforesaid case. We are aware that there are some decisions which have taken a contrary view by holding that s. 104 read with order 43 Rule I does not apply to a Trial Judge under the Letters Patent. These decisions do not appear to have considered the various shades and aspects and the setting of the provisions of ss. 104 and 117 and order 49 Rule 3 but seem to have proceeded on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h completely demolishes the presumptuous process of logic adopted by the court. Thirdly, the Court appears to have overlooked that far from excluding the Code there could be other special Acts which could and did confer additional jurisdiction even in internal appeals to the High Court, viz., from an order passed by a Trial Judge to a larger Bench, for instance, s. 39 of the Arbitration Act or s. 202 of the Indian Companies Act and other similar local or special Acts. If these special Acts could without affecting the jurisdiction of the Letters Patent or overriding the same provided a supplementary or additional jurisdiction, there was no reason why the Code of Civil Procedure also could not do the same particularly when the Trial Judge had to adopt the procedure contained in the Code, starting from the presentation of the plaint to the delivery of judgment. Fourthly, the Division Bench does not seem to have considered the fact that what the Letters Patent did was merely to confer original civil jurisdiction on the High Court to be exercised by a Single Judge, who would undoubtedly be a Trial Judge, but of an elevated status so that only such suits could be filed in the Court of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of s. 104, Civil P.C., does not refer to the Letters Patent and say that in spite of Cl. 15 of the Letters Patent no appeal lies from any order passed in an appeal under Sub-s. (1). Sub-s. (2) is in no way inconsistent with cl. 15 of the Letters Patent and the two can stand together, the former applying to appeals under the Code, and the latter to special appeals within the High Court...I am satisfied that s. 104, Civil P.C . does not control cl. 15 of the Letters Patent, and in spite of the absence of a saving clause in sub-s. (2) of s. 104 does not affect or cut down the right of appeal conferred by the Letters Patent. (Lokur, J.) As regards the first part of the observations of Wadia, J, we are constrained to observe that the learned Judge has not correctly construed the true ratio of the decision of the Privy Council in Hurrish Chunder Chowdry s case (supra) where, as indicated, the Privy Council has in express terms held that s. 588 (which now corresponds to order 43 Rule 1) clearly applies to appeals against orders of a Trial Judge to a larger Bench of the High Court. Similarly, the observations made by Lokur, J. run against the plain interpretation of s. 104 by assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an that they give any right to an appeal from an order by a Judge or Judges of that Court to a larger number of Judges of the same Court independently of the Letters Patent of the Court. As we have said if o. 43 or s. 104, Civil P.C., were made applicable per se, without reference to the Letters Patent, then even an order passed by a bench would come under those provisions, but before an appeal can be filed there will have to be a Court constituted for hearing an appeal and the only provision for hearing an appeal, from the judgment of a single Judge, by a bench of two or more Judges of the same Court is contained in the Letters Patent of the Chartered High Courts. An order, to come under the Letters Patent must be a judgment, and, if an order is not a judgment, then cl. 10 of the Letters Patent would not apply and there is no provision for constituting a bench of more than one Judge to hear such an appeal. We, therefore, fail to understand how O. 43 R. 1, or s. 104, Civil P.C. without any reference to cl. 10 of the Letters Patent, can help the appellants. In this case also, the line of reasoning adopted by the court is the same as that of the Bombay High Court referred to abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Godawari Upasani Maharaj of Sakori Ors. (1) where Niyogi, J. Observed as follows :- Clause 10, Letters Patent defines the appellate jurisdiction of the High Court vis-a-vis the judgment passed by a single Judge of that Court. It should be observed that the Civil Procedure Code does not make any provision in this behalf. The right of appeal from a decree of a single Judge to the High Court is not governed by s. 96 or s. 100 or s. 104, Civil P.C., but by cl. 10, Letters Patent.. This right of appeal depends on the special provision made in the Charter. S. 4, Civil P.C., provides that the Code does not affect any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. Since the special jurisdiction or power is conferred on the High Court by cl. 10, Letters Patent the provisions in the Civil Procedure Code regarding appeals cannot come into operation in regard to an appeal from a single Judge of the High Court to the High Court . With due respect, we are unable to agree with the opinion expressed by Niyogi, J. who has made a bald statement that the Code of Civil Procedure does not make any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate decrees is wholly irrelevant because the question is whether under order 43 Rule 1, an appeal could lie from a Trial Judge to a Division Bench of the High Court. Secondly, the learned Judge says that s. 104 bars a second appeal from the order and that the Code of Civil Procedure makes no provision for appeal within the High Court. Here again, the learned Judge is wrong because we have already pointed out that as far back as Hurrish Chunder Chowdry s case (supra) it was clearly held by the Judicial Committee that s. 588 was applicable even to internal appeals in the High Court. On a parity of reasoning, therefore, on the basis of which we have overruled the decisions of the other High Courts, taking a similar view we find ourselves unable to agree with the view taken by Mangalmurti and Bose, JJ. in the aforesaid case and hold that this case is not correctly decided. A later decision of the Allahabad High Court also seems to have taken the same view. In Standard Glass Beads Factory Anr. v. Shri Dhar Ors. (2) the following observations were made :- Such an order if made by a subordinate court is appealable under or. 43 R. 1, C.P.C.; it is, as we have seen an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions follows the reasonings of the A two decisions of the Bombay High Court, discussed above, and are therefore open to the same criticism which we have levelled against the previous decisions. Secondly, the court seems to think that all the High Courts in India have consistently taken the view that order 43 Rule 1 does not apply to internal appeals in the High Courts. This is doubtless factually incorrect because we have referred to a large number of decisions which have taken a contrary view. The High Court was, therefore, not quite correct in observing that the High Courts in India had taken a consistent view in regard to this matter. Thirdly, the High Court seems to have relied heavily on the decision of the Privy Council in Hurrish Chunder Chowdry s case (supra) and on Chappan s case (supra) in holding that order 43 did not apply to internal appeals in the High Courts which were governed by the Letters Patent alone. Here also, with due respect, the High Court has gravely erred. We have pointed out while dealing with Hurrish Chunder Chowdry s case (supra) that the Privy Council had clearly laid down that s. 588 applied to the High Court and this position has been understood in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not appealable unless it is within section 588 . and Moore, J. Observed as follows :- It is clear, however, that this could not have been done, for the provisions of sections 588 and 591 do, in certain cases, most certainly apply to the High Court. For example, section 588, clause 1, provides that if a District Munsif passes an order under section 20 of the Code, an appeal lies to the District Judge, but that there is no second appeal to the High Court, while if a District Judge passes such an order an appeal can be preferred to the High Court. Whatever view be taken of section IS of the Letters Patent it would have been impossible to include section 588 among those sections that do not apply to the High Court . Thus, the ratio decidendi of the decision clearly goes to indicate that the Full Bench of the Madras High Court had held in no uncertain terms that s. 588 applied to the High Court and orders mentioned therein passed by a Trial Judge would be appealable to a larger Bench. This, therefore, knocks the bottom out of the decision of the Bombay High Court when Chappan s case (supra) in no way supported the view taken by them. For the reasons given above, we hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cases, the import, definition and the meaning of the word judgment appearing in cl. 15 assumes a real significance and a new complexion because the term judgment appearing in the Letters Patent does not exclude orders not falling under the various clauses of order 43 Rule 1. Thus the serious question to be decided in this case and which is indeed a highly vexed and controversial one is as to what is the real concept and purport of the word judgment used in cl. IS of the Letters Patent. The meaning of the word judgment has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and in spite of such length of time, unfortunately, no unanimity has so far been reached. As held by us earlier it is high time that we should now settle this controversy once for all as far as possible. We now proceed to deal with the main controversy as to what is the true scope, meaning and purport of the word judgment used in cl. 15 of the Letters Patent. Numerous authorities on both sides were cited before us in the course of the very able arguments advanced by counsels for the parties and it appears that there are three leading judgments whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not justified in interpreting a legal term which amounts to a complete distortion of the word judgment so as to deny appeals even against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such cases, a just balance must he struck so as to advance the object of the statute and give the desired relief to the litigants, if possible. Although it is true that this decision is practically the locus classicus so far as the Calcutta High court is concerned and has been consistently followed by later decisions at the same time it cannot be denied that in a number of cases the conscience of the Judges was so shocked that they tried to whittle down or soften the rigours of this decision so much so that in one case the observations of the Chief Justice were not only not followed but were described as antiquated and in other cases the Judges strongly expressed them selves that the High court should give up its fondness to stick to the principles laid down by the learned Chief Justice. It is not necessary for us to burden this judgment with later decisions of the Calcutta High court in trying to comment on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . has been described as classical, and yet in a long course of decisions this Court has repeatedly expressed the view that the definition is absolutely exhaustive. Treating this definition as not of an inflexible character and yet not expressly purporting to extend it, the Court has in numerous cases emphasised the necessity of scrutinizing the nature of the decision in each particular case in order to find out whether the decision amounts to a judgment within the meaning of the Clause. In Shorab Merwanji Modi and Anr. v. Mansata Film Distributors and Anr., the following observations were made: On a strict construction of the Calcutta test, the Tight or liability must mean some right or liability which is a subject-matter of controversy in the suit or proceeding but in its application to individual cases, that strict construction has not been adhered to and was indeed often departed from by Couch, J., himself who was the author of the test. Orders concerning the jurisdiction of the Court to entertain a suit, as distinguished from matters of the actual dispute between the parties, were held by him to come within the category of judgments. In Mooammed Felumeah v. S. Mond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent. I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) - e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a judgment within the meaning of the clause. Analysing the observations of the learned Chief Justice it would appear that he has laid down the following tests in order to assess the import and definition of the word judgment as used in cl. IS of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so by a large majority of the later decisions of the Calcutta High Court in Lea Badin v. Upendra Roy Chaudhury, Kumar Gangadhar v. Kanti Chunder Mukherjee, Shorab Merwanji Modi v. Mansata Film Distributors, Mohammed Felumeah v. S. Mondal.(supra) Some of the decisions have sounded a discordant note and have gone to the extent of characterising the view of Sir Couch, C.J, as being antiquated and have strongly expressed the view that the Calcutta High Court should give up its fondness for the strict test laid down by Sir Couch in The Justice of the Peace for Calcutta s case. On the other hand, the tests laid down by Sir White, C.J. in Tuljaram Row s case have been followed by the Lahore High Court in Ruldu Singh v. Sanwal Singh and by some other High Courts in Standard Glass Beads Factory Shri Dhar Ors. and later decisions of the Madras High Court as also by Andhra Pradesh High Court in Kuppa Viswappathi v. Kuppa Venkata Krishua Sastry. A Full Bench of the Allahabad High Court, however, in Mt. Shahzadi Begam v. Alak Nath dissented from the view taken by the Madras High Court and held that the tests laid down by that High Court in the aforesaid case were rather too wide. In this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by them regarding the scope and meaning of the word judgment before giving our own view of the matter. Before, however, dealing with the cases of this Court we might indicate that in view of the decisions taken by us regarding the applicability of s. 104 read with order 43 Rule 1 even to internal appeals in the High Court, the controversy regarding the meaning of the word judgment has been largely narrowed down and sufficiently abridged because the orders mentioned in clauses (a) to (w) of order 43 Rule 1 having been held to be appealable, there would be only a few cases left in A which the question as to whether or not the orders passed by the Trial Judge are judgments would arise. After discussing the decisions of this Court, we shall give a list of illustrative cases which may justly be described as judgment within the meaning of the Letters Patent so as to cover almost the entire field though a few cases still may have to be determined according to the principles laid down. The first decision of this Court which is relevant is Asrumati Debi s case (supra). In this case the only question involved was whether an order transferring a suit under cl. 13 of the Letters Patent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislature was to preserve the Letters Patent jurisdiction of the High Court and provided for a right to appeal from the Trial Judge to the Division Bench without affecting the provisions of the Code of 1908. In this connection, the Court observed as follows :- Under the Code, as amended, the view has consistently been taken that interlocutory judgments (i.e., decisions though not amounting to decrees which affect the merits of the questions between the parties by determining some right or liability) passed by single Judges of Chartered High Courts were appealable under the Letters Patent . We might mention here that the observations of this Court completely demolish the arguments of some of the High Courts that s. 104 does not apply to internals in the High Court because this Court while referring to the Code made specific reference to s. 104 in the previous paragraph. Apart from this, there is no observation by this Court regarding essential requisites of a Judgment. In State of U.P. v. Dr. Vijay Anand Maharaj (supra) the order impugned passed by the Single Judge was an order dismissing an application filed by the applicant to review the order of the Trial Judge. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The last case of this Court to which our attention has been drawn is Shanti Kumar R. Canji v. The Home Insurance Co. Of New York where the court was considering the effect of an order passed by the Trial Judge allowing amendment of the plaint and the question at issue was whether such an order would be a judgment within the meaning of the Letters Patent. The following observations were made by this Court in the aforesaid case. We are in agreement with the view expressed by the High Court at Calcutta in the M.B. Sirkar s case (AIR 1956 Cal. 630) as to when an order on an application for amendment can become a judgment within the meaning of clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in the Code of Civil Procedure which came into existence long after the Letters Patent were given. In this connection, the Chief Justice observed as follows :- It has been held in numerous cases that as the Letters Patent were drafted long before even the earlier Code of 1882 was passed, the word judgment used therein does not mean the judgment as defined in the existing Code of Civil Procedure. At the same time the word judgment does not include every possible order, final, preliminary or interlocutory passed by a Judge of the High Court . We find ourselves in complete agreement with the observations made by the Allahabad High Court on this aspect of the matter. The definition of the word judgment in sub-s. (9) of s. 2 of the Code of 1908 is linked with the definition of decree which is defined in sub-s. (2) of s. 2 thus: decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the Trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res Judicata, a manifest defect in the suit, absence of notice under section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an R order even though it keeps the suit alive, undoubtedly decides an importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex-parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the Trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench. In the course of the trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d constitute sufficient guidelines to determine whether or not an order passed by the Trial Judge is a judgment within the meaning of the Letters Patent. We must however hasten to add that instances given by us are illustrative and not exhaustive. We have already referred to the various tests laid down by the Calcutta, Rangoon and Madras High Courts. So far as the Rangoon High Court is concerned we have already pointed out that the strict test that an order passed by the Trial Judge would be a judgment only if it amounts to a decree under the Code of Civil Procedure, is legally erroneous and opposed to the very tenor and spirit of the language of the Letters Patent. We, therefore, do not approve of the test laid down by the Rangoon High Court and that decision therefore has to be confined only to the facts of that particular case because that being a case of transfer, it is manifest that no question of any finality was involved in the order of transfer. We would like to adopt and approve of generally the tests laid down by Sir White, C.J. in Tuljaram Row s case (supra) (which seems to have been followed by most of the High Courts) minus the broader and the wider attributes adumbrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the ground of limitation, absence of notice under s. 80, bar against competency of the suit against the defendant even though the suit is kept alive. (6) An order rejecting an application for a judgment on admission under order 12 Rule 6. (7) An order refusing to add necessary parties in a suit under s. 92 of the Code of Civil Procedure. (8) An order varying or amending a decree. (9) An order refusing leave to sue in forma pauperis. (10) An order granting review. (11) An order allowing withdrawal of the suit with liberty to file a fresh one. (12) An order holding that the defendants are not agriculturists within the meaning of the special law. (13) An order staying or refusing to stay a suit under s. 10 of the Code of Civil Procedure. (14) An order granting or refusing to stay execution of the decree. (15) An order deciding payment of court fees against the plaintiff. Here, it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a Trial Judge in any proceeding under Art. 226 of the Constitution which are not governed by the Letters Patent but by rules framed under the Code of Civil Procedure under which in some High Courts writ petitions are heard by a Division Bench. In other High Court writ petitions are heard by a Single Judge and a right of appeal is given from the order of the Single Judge to the Division Bench after preliminary hearing, In the circumstances we make no order as to costs. AMARENDRA NATH SEN, J. The only question which falls for determination in this appeal by special leave is whether an order passed by a Single Judge on the original side of the Bombay High Court refusing to grant an injunction or to appoint a receiver in an interlocutory application made in the suit, is appealable or not ? In other words, the maintainability of an appeal filed before a Division Bench of the Bombay High Court against an order of a learned single Judge of the High Court dismissing an interlocutory application for injunction and for appointment of a receiver by way of interim relief pending final disposal of the suit in the original side of the High Court, forms the subjectmatter of the present ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the urgency of the matter passed an order allowing the appeal and remanding the matter to the Bombay High Court for decision of the appeal on merits and this Court observed at the time of the passing of the order that this Court would state reasons later on. The full text of the order has been set out in the judgment of my learned brother Fazal Ali. J. I have had the benefit of reading the judgment of my learned brother Fazal Ali, J. in advance. I concur generally with the views expressed by my learned brother. 1, however, propose to state my own reasons for the order earlier passed by us. The learned counsel appearing on behalf of the respective parties invited us only to decide the question of appealability of the order under appeal without going into the merits of the case. The learned counsel for the parties have submitted before us that there is a conflict of decisions on the question of appealability of an order of this kind and maintainability of an appeal from such an order and this Court should resolve the conflict and decide the question of appealability of such an order and necessarily the maintainability of the appeal to a Division Bench of the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge. Mr. Sorabjee has submitted that the Code of Civil Procedure confers substantive rights of preferring appeals against particular orders specified in the Code. In this connection Mr. Sorabjee has drawn our attention to S. 104 and also order 43 of the Code of Civil Procedure. Mr. Sorabjee argues that the Code of Civil Procedure confers a right of appeal on a litigant in respect of the orders which have been made statutorily appealable by the provisions contained in S. 104 and order 43 of the Code of Civil Procedure. It is the argument of Mr. Sorabjee that the Code of Civil Procedure makes inter-alia general provisions with regard to appeals and also specifically confers on the litigant a right in respect of various orders, just as various other statutes make special or specific provisions with regard to the right of appeal in respect of any order under the particular statute. Mr. Sorabjee has submitted that S. 104 of the Civil Procedure Code and order 43 thereof clearly apply to the original side of a High Court. In support of these submissions, Mr. Sorabjee has drawn our attention to the various provisions of the Code and particularly to Ss. 4, 98-104, 116 to 120, and S. 122 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Sorabjee has next contended that in any event the order under appeal should be considered to be a judgment within the meaning of cl. 15 of the Letters Patent. He argues that the word judgment in clause 15 of the Letters Patent should be construed liberally so as to include within its fold any order which has been made appealable by virtue of the provisions contained in the Code or in any other statute. He submits that such an interpretation will be in conformity with the principles of justice and will truly reflect intention of the Legislature and will avoid any kind of conflict between the provisions contained in cl. 15 of the Letters Patent and A the provisions contained in the Code of Civil Procedure and in any other statute. It is his submission that the word judgment in cl. 15 of the Letters Patent may include various other orders which may not otherwise be appealable under the provisions of the Code or any other Statute but may still become appealable as judgment by virtue of the provisions contained in the Letters Patent. In other words, it is the contention of Mr. Sorabjee that the expression judgment in cl. 15 of the Letters Patent should be so construed as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Mr. Venugopal, learned counsel for the Respondents, have submitted that the provisions of the Code of Civil Procedure contained in S. 104 and order 43 thereof are not applicable to the original side of the Bombay High Court which is a Chartered High Court in view of the provisions contained in cl. 15 of the Letters Patent. They have argued that special jurisdiction has been conferred in the matter of preferring an appeal against an order of a Single Judge on the original side of a Chartered High Court by cl. 15 of the Letters Patent and this special jurisdiction of the High Court cannot in any way be affected by the provisions of the Code. In support of this contention reference has been made to Ss. 3 and 4 of the Code of Civil Procedure and particular reliance has been placed on S. 4. They have also strongly relied on the decision of the Bombay High Court in the case of Vaman Raoji Kulkarni v. Nagesh Vishnu Joshi(1) and also on the decision of the same High Court in the case of J.K. Chemicals Ltd. v. Kreba and Co. (supra). They have submitted that these judgments for cogent reasons recorded therein represent correct law and the view expressed by the Bombay High Court to the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra. S. 3 of the Code provides that for the purpose of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. S. 4 of the Code reads:- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. (2) In particular and without prejudice to the generality of the proposition contained in subsection (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of lent of agricultural land form the produce of such land. S. 5 of the Code deals with the applicability of the provisions of the Code to Revenue Courts. S. 100 of the Code deals with appeals from Appellate Decree and S. 100-A which has been introduced into the Code w.e.f. 1.2.1977 by the Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special provisions relating to the High Courts, not being the court of a Judicial Commissioner, are made in para IX of the Code which consists of five sections namely Ss. 116 to 120 and the said sections are as follows:- S. 116: This Part applies only to High Courts not being the Court of a Judicial Commissioner. S. 117: Save as provided in this Part or in part X or in rules, the provisions of this Court shall apply to such High Courts. S. 118: Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs: and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation. S. 119: Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original side discharges his duties as a Judge of the High Court, and he can, therefore, be in no way subordinate to the High Court. When a division Bench of a High Court hears an appeal from any decree, order or judgment of any Single Judge of the High Court in its original side there can be no question of any subordination of the Judge, presiding over a Bench on the original side of the High Court to the High Court. An appeal admittedly lies to a division Bench of the High Court from any order passed by a learned single Judge on the original side under cl. 15 of the Letters Patent, if the order is a Judgment within the meaning of the said clause. An appeal also admittedly lies from a decree passed by a Single Judge on the original side of the High Court to a division Bench of the High Court. A division Bench, properly constituted, is perfectly competent to hear an appeal from any such order which may constitute a judgment within the meaning of cl. 15 and from any decree by a Single Judge on the original side of the High Court. In the same way, in case of any other order in respect of which right to prefer any appeal has been conferred by a statute, a division Bench of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such a provision creating a right of appeal in any way affects the provisions contained in cl. 15 of the Letters Patent. The special power and jurisdiction of the High court under cl. 15 to entertain an appeal from any judgment is in no way affected and is fully retained; and in addition to the said power, a High Court may be competent to entertain other appeals by virtue of specific statutory provisions. S. 4 of the Code cannot, therefore, be said to be in conflict with the provisions contained in cl. 15 of the Letters Patent and S. 4 of the Code does not limit or otherwise affect the power and jurisdiction of the High Court under cl. 15 of the Letters Patent. On the other hand, the Code contains specific provisions which go to indicate in which case or to which Court the provisions of the Code, may or may not be applicable. S. S of the Code makes specific provisions regarding the nature and manner of applicability of the Code to Revenue Courts and the Revenue Court has also been defined in the said section. On the other hand, in Ss. 116 to 120 it is convincingly indicated that S. 104 and order 43 of the Code of Civil Procedure apply to the original side of a High Court. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprive a litigant of the statutory right merely on the ground that the order in question has been passed by a learned Judge on the original side of the High Court. It may further be pointed out that S. 104 which makes the order under appeal and also various other orders referred to therein appealable under the Code, recognises that apart from the order made appealable under the Code there may be other orders appealable by any law for the time being in force and further provides that no appeal will lie from any orders other than the orders expressly provided in the body of the Code or by any other law in force. The right of appeal against a judgment of a learned single Judge on the original side under cl. 15 of the Letters Patent is a right conferred by any other law in force. It may be pertinent to point out in this connection that by incorporating S. 100A in the Code (by the Amending Act 104 of 1976, S. 38), the Legislature has thought it fit to interfere with the right of appeal in certain cases, even if such right had been conferred by Letters Patent or any other law. This right of appeal under cl. 15 of the Letters Patent is in no way curtailed or affected by S. 104 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, which it enumerated, and from no other such orders. This raised this question nearly whether an appeal, expressly given by Section 15 of the Letters Patent and not expressly referred to in Section 588 of the Code of 1882, could be taken away by the general words of the section 581 and in the wording of section 104 of the Act of 1908 is significant for it runs, and same as otherwise expressly provided....by any law for the time being in force, from the other orders . Section 15 of the Letters Patent is such a law, and what it expressly provides namely, an appeal to the High Court s appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by orders and Rules under the Code of Civil Procedure, 1908 are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal. The effect of sub-section (1) S. 104, therefore, is clearly not to affect any existing special or local law or any special jurisdiction or power conferred and to preserve any existing right of appeal whether under any statute or the Letters Patent and to cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian High Courts Act, 1961. The only provision in Part IX, which may have any possible hearing is that contained in S. 120 which obviously does not touch the present question. The provision in Part X, which deal with the matter, is contained in S. 129: this also does not militate against the contention of the appellant. The term rule , which finds a place in S. 117, is defined in clause 18 of S. 2 of the Code to mean a rule contained in the first Schedule or made under S. 122 or S. 125 . Our attention has not been drawn to any such rule which makes o. 43, R. 1, Clause (e), inapplicable. On the other hand O.49, R. 3, which excludes the operation of other rules, lends support to the contention of the appellant that o. 43, r. 1, cl. (c) is applicable to the present appeal. But it has been argued on behalf of the respondents, on the authority of the decision of the Judicial Committee in Hurriah Chandra Choudhary v. Kali Sudari Dasi that the Civil Procedure Code, in so far as it provides for appeals, does not apply to an appeal preferred from a decision of one Judge of a High Court to the Full Court. The true effect of the decision of the Judicial Committee was considered by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the order in question is clearly appealable by virtue of the provisions contained in S. 104(1) read with order 43 thereof. The authorities to which I have referred also lend support to the view that I have taken. A contrary view expressed by any High Court must necessarily be considered to be wrong and incorrect. The leading decision of the Bombay High Court in the case of Baman Rao Kulkarini v. Naresh Vishnu Joshi (supra) proceeds on an incorrect appreciation and interpretation of the provisions of the Code. As I have earlier discussed, there is no question of S. 104 of the Code of Civil Procedure purporting to control of cl. 15 of the Letters Patent. It may, on the other hand, be said that S. 104 of the Code seeks to supplement cl. 15 of the Letters Patent by conferring a right of appeal in the case of various orders mentioned in sub-section (1) of S. 104, which brings in its purview S. 43 of the Code. The further approach of the Bombay High Court in that case as to subordination of a judge of the High Court sitting singly on the original side, is fallacious and untenable. An appeal under cl. 15 of the Letters Patent from a judge sitting singly on the original side of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute confers a right on the litigant to prefer an appeal against such an order. Such an order may or may not be appealable as judgment under cl. 15 of the Letters Patent. An order which may be appealable under cl. IS of the Letters Patent as a judgment becomes appealable as Letters Patent confers on the litigant a right of appeal against such an order as judgment . An order appealable under the Letters Patent may or may not be appealable under the Code. A right of appeal is a creature of Statute. A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. Certain orders become appealable under the Code, as the Code makes such orders appealable. Other Statutes may confer a right of appeal in respect of any order under the Statute. The Letters Patent by cl. 15 also confers a right to prefer an appeal against a judgment . An order which satisfies the requirements of judgment within the meaning of cl. 15 becomes appealable under the Letters Patent. What kind of an order will constitute a judgment within the meaning of cl. 15 of the Letters Patent and will become appealable as such much necess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
